NY taking comment on revised gas drilling rules

ALBANY -- New York regulators will begin taking public comments on revised gas-drilling rules this week, though an extensive environmental review outlining the basis for those rules remains incomplete, and neither drillers nor environmentalists are happy lately with the state's work on the issue.

Health and environmental groups have criticized Gov. Andrew Cuomo's Department of Environmental Conservation for issuing the revised regulations before completing a health review or releasing the final version of a massive environmental impact study initiated in 2008. The state has had a moratorium on shale gas development since the study began.

"The governor insisted that he was going to let science dictate his decision, but instead we get regulations that have nothing to do with science," said Sandra Steingraber, a leader of New Yorkers Against Fracking.

Gas industry representatives say the revised regulations are stricter than those proposed in September 2011 and ignore numerous industry requests for changes to provisions they consider arbitrary and inflexible.

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Even the revision process itself has come under fire. DEC posted the voluminous revised regulatory document on its website the day before a deadline last month and filed for a 90-day extension to finalize rules for the controversial drilling technology known as fracking. The highly technical document was not accompanied by any summary of changes. The agency will take public comment from Dec. 12 through Jan. 11, and the new deadline to finalize the rules is Feb. 27.

"For the average member of the public, it's not entirely clear all the changes that have been made," said Katherine Nadeau of Environmental Advocates.

In high-volume hydraulic fracturing, or fracking, large volumes of chemically treated water mixed with sand are injected into a well to crack shale and free natural gas. The technology has made it possible to tap into deep reserves of gas but has also raised concerns about pollution. The industry and federal officials say the practice is safe when done properly but some scientists say more research is needed on potential air and water impacts.

Changes to New York's proposed regulations include increasing the distance from well sites to occupied homes or buildings to 500 feet, said Tom West, an Albany lawyer who represents major gas-drilling companies. Originally it was 100 to 150 feet. As before, a landowner can grant the driller a waiver to the 500-foot setback, but the new rules require the driller to also get approval from DEC, West said. That would be a complicated process that may require hearings.

The 500-foot distance between well sites and water supplies was expanded to include water for crops and livestock as well as human drinking water.

"There are significant changes to require public disclosure of chemicals used," West said. "Essentially, they've made an effort to bring New York into conformity with the growing trend in other states to require chemical disclosure."

The new regulations also introduced the possibility of imposing fees to recoup the cost of the state's environmental review, said Yvonne Hennessey, another gas industry lawyer. "It's unclear from the text what their intentions are; it's very vague," she said.

A cap on bonding, set at $2 million in the 2011 version of the regulations, has been removed, leaving the amount of bonding required of drillers up to the discretion of DEC, Hennessey said.

There are new requirements to allow the public 15 days to comment on permit applications and to give advance notice of permit applications to municipalities, which were previously notified only when a drilling permit was issued.

New requirements say residential water well testing must be done before there's any site disturbance rather than just before drilling, and results must be reported to the state rather than just the landowner. If subsequent testing after drilling shows changes from that initial testing, it must be reported to DEC within five days. There's also some provision for groundwater monitoring, but it's not clearly spelled out, Hennessey said.

It's unclear whether well testing and other water monitoring results will be accessible to the public, she said. One of the criticisms health and environmental groups make of industry is that it's impossible to track the safety record of drillers because any contamination reports are settled privately between the company and landowner.

"There are very few changes in response to industry comments," West said. "The biggest issue industry was looking for was a means to get a variance from some of the restrictions by offering enhanced environmental controls. Under the inflexible requirements set forth in these regulations, there will be areas of the state with significant shale resources that will be impossible to develop."